§ 656. Civil actions-Courts - Their officers-Juries.—An action is a proceeding in a court by a plaintiff against a defendant, to establish a right or to obtain a remedy. In every court there must be a judge, whose duty it is to preside and direct the proceedings of the court and to decide such matters of law or fact as inay be submitted to him; a clerk, whose duty it is to keep a faithful minute and record of all the proceedings of the court and to perform such other duties as the law and rules of practice may require; a sheriff or bailiff, who is to maintain order in the court, to obey the orders of the judge and to serve the process of the court. It is the duty of the jury, under the directions of the court as to matters of law, to decide the questions of fact submitted to them, and to put their decision in the form of a verdict, to which they unanimously agree.

§ 657. Actions, how commenced-Parties.-In every action there must be two adversary parties and a real controversy. Courts are not organized for the purpose of deciding abstract questions of law unless it is necessary to establish the substantial rights of the parties to the action. To begin and prosecute a fictitious proceeding in a court is a contempt of court. The plaintiff begins his suit by filing in the proper court a statement in writing showing the facts upon which he bases his claim for redress. This is called a declaration, complaint, petition

or bill.

§ 658. The process.-The clerk issues a writ bearing the seal of the court and attested by the clerk, which is delivered to the sheriff for service upon the defendant who is named in the writ. The writ or summons requires the defendant to appear and plead to the action by a day specified, and must be served as required by law, either

by reading it to the defendant in person, by leaving a copy of it at his usual place of residence, or by leaving a copy at some other place designated by law. Sometimes the form of the action is such that the writ issued requires the sheriff to seize the person of the defendant or goods in his possession. And in cases of foreign attachment the goods of a defendant may be seized in a state where he is not a resident to satisfy plaintiff's claim. In actions where the defendant can not be served with process, and the court has jurisdiction of the subjectmatter of the controversy, constructive notice is given by publication in a newspaper, or service of summons may be made upon defendant in another state, when the statute allows it. But in cases where constructive notice alone is given, the judgment of the court is binding upon the defendant only so far as it relates to the property within the jurisdiction of the court.

§ 659. How served and returned.-If the sheriff finds the defendant, it is his duty to serve the process, to indorse upon it the time and manner of service, and to return and file it with the clerk who issued it. The defendant may not wish to contest the action, in which case he fails to appear in court, and judgment is taken against him by default. If he wishes to defend he must enter his appearance and file his defense according to the rules of practice of the court where the action is pending.

§ 660. Matters of defense. If a defendant denies the right of the court to hear the controversy, he objects to the jurisdiction. If the court has jurisdiction and the suit is properly brought, the defendant may be willing to admit that the facts stated in plaintiff's complaint are true, but may insist that they are not sufficient in law to entitle the plaintiff to the redress he seeks; in such

case he files a pleading called a demurrer, and if the court sustains the position of the defendant, judgment is given against the plaintiff, who has the option to amend his faulty pleading, or to appeal from the judgment. In the same way a demurrer may be interposed to a defective answer or reply, if it does not in the opinion of plaintiff state facts sufficient to constitute a good defense or reply. A demurrer raises what is called an issue of law. A pleading which denies the allegations of another pleading raises an issue of fact. An answer which admits the sufficiency of the complaint, but alleges new matter which makes a good defense to plaintiff's claim, is called an answer in confession and avoidance.

§ 661. Objection to jurisdiction, how and when made. A defendant who wishes to object to the jurisdiction of the court over the parties to the suit must enter a special appearance for that purpose. If he enters his appearance generally, he waives his right to make such a plea. But if the court has no jurisdiction over the subject-matter, all proceedings in regard to it are void. If a defendant is sued in one jurisdiction, when he has a right to demand that he should be sued in another, he can give the court jurisdiction by appearing to the action or by failing to plead to the jurisdiction. If one court should proceed to try an action in relation to a matter, the jurisdiction of which by law belongs exclusively to another court, all its proceedings would be void. If the facts showing want of jurisdiction appear upon the face of plaintiff's complaint, the court will dismiss the action upon the motion of the defendant. If the facts do not so appear they must be brought to the attention of the court by a special plea to the jurisdiction.

§ 662. Answers or pleas in abatement.-A defend

ant may file an answer in abatement, and this may be based on defects in the process, defects in the service of process, incapacity of plaintiff to sue, incapacity of the defendant to be sued, misdescription of the parties, plaintiff or defendant, misjoinder of parties, nonjoinder of parties, another action pending for the same cause between the same parties. Some of these defects may be brought to the attention of the court by demurrer or motion, according to the practice of the court where the action is pending. It will be seen that none of the defects above named go to the merits of the controversy, and most of them may be cured by amendment. An answer in abatement is a dilatory answer, and ordinarily it must be filed and disposed of before the case is tried on its merits.

§ 663. Issues of fact and issues of law. When the parties are at issue upon a question of law alone, the judge decides it. An issue of fact is submitted to a jury, unless the parties waive a jury and consent to a trial by the court.

§ 664. The jury.—A jury is a body usually of twelve men summoned from the residents or citizens of the county where the case is tried who are impaneled and sworn to try the issues in the case and to render a true verdict according to the law and the evidence. What is called the regular venire is a body of men summoned to serve as jurors generally during all or a portion of the term of court. A special venire is a body of men selected and summoned to try a particular case. When a regular or special venire is exhausted by challenges or other cause, without securing the requisite number, a new venire is issued or the number is made up from bystanders who have the requisite qualifications to serve as jurors.

Before the jurors are sworn to try the case, either party may object to them as a body or to the jurors individually. The first objection may be based upon an irregularity or defect in the manner of making up or serving the venire, or the misconduct or partiality of the sheriff by whom it is served. The second objection is based upon the legal disqualification of the jurors objected to, or on account of their bias in favor of one of the parties. The first objection is called a challenge to the array, the second is called a challenge to the polls. There are two kinds of challenges to the polls. Where the ground of a challenge is the bias of the juror it is a challenge for cause. Where the challenge is without cause it is a peremptory challenge. The right to use the peremptory challenge in civil cases is limited to a small number, usually two or three. The right to the challenge for cause is without limit as to number, it being essential that all of the twelve jurors should be able to hear and decide the case without partiality or bias.

§ 665. Trial. The jury being impaneled and sworn to try the case, the counsel of the parties read the pleadings or state the substance of them to the jury, together with a summary of the evidence which they expect to produce in support of the issues.

§ 666. Evidence.-Evidence includes all the means by which an alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. Proof is the effect of evidence. Evidence consists of statements made by witnesses under oath in relation to matters of fact under inquiry, and of documents produced for the inspection of the jury and court. There are three degrees or kinds of evidence, namely, conclusive, prima facie, and evidence tending to prove. Conclusive evidence